October 3, 2012
On September 28, 2012, the Fourth District Court of Appeal ruled that administrative hearing officers overseeing disciplinary appeals under the Public Safety Officers Procedural Bill of Rights Act (“POBR”), Government Code section 3304(b), may grant Pitchess motions governing the production confidential peace officer personnel records. Riverside County Sheriff’s Department v. Stiglitz (Sept. 28, 2012) 2012 WL 4466333.
As background, the California Supreme Court in Pitchess v. Superior Court (1974) 11 Cal.3d 531, held that a criminal defendant was entitled to the discovery of personnel records to demonstrate that a police officer had a history of excessive force that was relevant to the defendant’s claim of self-defense. Following the Pitchess decision, the California Legislature enacted provisions of the Evidence Code section 1043 and 1045, as well as Penal Code sections 832.7 and 832.8, which conjunctively worked to codify the privileges and procedures for the discovery of peace officer personnel records. By providing for an in camera review of the requested records by the court prior to any disclosure, these statutes work to balance a peace officer’s interest in the confidentiality of his or her records with a defendant’s interest in obtaining all relevant information to his or her defense.
In the case at issue, Kristy Drinkwater was terminated from the Riverside County Sheriff’s Department for falsifying her time records. During her disciplinary appeal, Drinkwater asserted that the penalty was too severe, as other employees had allegedly engaged in the same conduct, but had not been fired. Drinkwater filed a Pitchess motion with the hearing officer, Jan Stiglitz, to obtain peace officer disciplinary records that would support her contention that her termination was excessive. After the hearing officer granted the motion finding good cause to order the production of the requested documents for his in camera review, the County filed a petition for writ of administrative mandate to challenge the decision. The Superior Court held that there was no statutory authorization that would permit Stiglitz to consider a Pitchess motion in an administrative disciplinary hearing.
After Drinkwater and her union appealed the lower court’s decision, the Court of Appeal was called upon to reconcile two apparently contradictory provisions of the Evidence Code regarding the Pitchess process. First, Evidence Code section 1043 provides that a Pitchess motion may be filed in “the appropriate court or administrative body,” suggesting that such a motion could properly be filed in a disciplinary hearing under the POBR. However, Evidence Code section 1045, which provides the procedure for deciding a Pitchess motions, only refers to how a “court” shall proceed upon the filing of motion, including its oversight of the in camera review process. As such, the statutes did not provide clear guidance as to how an employee who filed a Pitchess motion in an administrative appeal would invoke the jurisdiction of the court to make a ruling on the motion.
Ultimately, the Court of Appeal resolved this conflict by finding that a Pitchess motion could be ruled on by a hearing officer in the course of an administrative hearing under the POBR. The Court of Appeal reasoned that access to Pitchess discovery was consistent with the peace officer’s due process right to present a meaningful defense in his or her disciplinary appeal. That meaningful defense would necessarily include the opportunity to establish the existence of disparate treatment of similarly situated employees. Accordingly, the Court of Appeal determined that an interpretation of the Evidence Code that would deny Pitchess discovery of such personnel records in an administrative appeal under the POBR would be unconstitutional.
Impact on Public Employers
The Riverside County Sheriff’s Department decision will likely have a significant impact on the nature and extent of discovery demands made in peace officer appeal hearings. Disparate treatment is a common defense asserted by employees seeking a reduction in the level of discipline imposed by the employer. Prior to Riverside County Sheriff’s Department, there was not a clearly defined process to obtain confidential peace officer personnel records to support such a defense during an administrative disciplinary hearing. Now, regardless of whether there is a provision governing the discovery process in an applicable memorandum of understanding, the Court of Appeal has made it clear that that due process requires the availability of Pitchess discovery in an administrative hearing provided under the POBR and that an assigned hearing officer is authorized to fully oversee that process. Consequently, we can anticipate that disciplined peace officers will bring such motions with greater frequency, resulting in an extended appeal process while the in camera review is completed and an order issued.
While the Riverside County Sheriff’s Department decision is certainly favorable to appealing employees, it also firmly established an employer’s ability to challenge a hearing officer’s order to produce records under Pitchess. The Court of Appeal confirmed that while a hearing officer could conduct an in camera review of confidential peace officer records, administrative mandamus in superior court is also available to provide judicial review of any order to produce such records. The fact that either the employer or an affected employee whose records are deemed subject to production may petition for administrative mandamus provides an “additional layer of protection for the officers’ concerns.”